Tripura hc order oct 8

1. HIGH COURT OF TRIPURA
AGARTALA
A.B. No. 75 of 2021
Sri Gagan Debbarma
……..Petitioner(s)
Versus
The State of Tripura
……..Respondent(s)
For Petitioner(s) : Mr. Kohinoor N. Bhattacharya, Adv.
For Respondent(s) : Mr. R. Datta, P.P.
HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order
08/10/2021
Apprehending arrest in Mungiakami PS case No. 20 of 2021
registered for offence punishable under sections 341 and 302 read with
section 34 IPC, accused applicant Gagan Debbarma has filed this
petition under section 438 Cr.P.C for granting pre arrest bail to him.
[2] Factual context of the case is as under:
The officer in charge of Mungiakami police station, Khowai
lodged a suo motu complaint at his police station on 20.06.2021
alleging, inter alia, that at 06.25 am on the day he received a
telephonic information from police inspector Subhrangshu Bhattacharya
of Kalyanpur police station who informed the complainant that one
person suspected to be a cattle lifter was detained by the local people
at Sovaram Chow Para where presence of police was urgently required.

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The complainant recorded the information in the general diary of his
police station vide MGK PS GD entry No. 7 and with the approval of his
higher authority, the complainant along with Sub Inspector Ranjan
Biswas rushed to the spot. Having arrived at the spot, complainant
found that one Saiful Islam of about 18 years’ of age was lying on the
street near Sovaram Chow Para SB school in an alarming condition with
several cut wound in his body and the injured was not able to speak
anything. Seeing police, the local people who gathered there, left the
place. The injured was shifted to Mungiakami primary health centre
from where he was referred to GBP hospital. The injured succumbed to
his injuries in GBP hospital at Agartala on the same day. Complainant
further alleged that from his secret source, he came to know that the
deceased along with his associates had stolen cattles from the area
during the intervening night between 19.06.2021 and 20.06.2021 and
while they were transporting the stolen cattles in vehicle bearing
registration No. TR 01AL-1662 (Bolero Pickup Van), they were detained
by the local people. When the deceased Saiful Isalm was trying to
escape he was detained at Sovaram Chow Para and brutally
manhandled by an agitated mob which caused his wounds and he
succumbed to his injuries in hospital. The Complainant did not name
anyone as accused in his FIR.
[3] On the basis of the said FIR, the case was registered and
investigation was taken up.

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[4] During investigation, police recorded the statements of some
of the witnesses who witnessed the assault on Saiful Islam and saw his
assailants. In the course of investigation, the post mortem examination
report of the deceased and other materials were also collected by the
investigating officer. On the basis of the incriminating materials
collected during investigation, the investigating agency took initiative to
arrest the applicant namely, Gagan Debbarma for which he has filed
this application under section 438 Cr.P.C seeking protection from arrest
and detention.
[5] Heard Mr. Kohinoor N. Bhattacharya, learned counsel
appearing for the petitioner. Also heard Mr. R. Datta, learned P.P.
representing the State respondent.
[6] It is contended by the counsel of the applicant that he is
totally innocent and he does not have any involvement in the alleged
assault of the deceased. Counsel submits that he is a student who has
been pursuing his studies in Assam. Counsel also submits that accused
Dinu Kumar Debbarma and another accused who were also arrested in
connection with this case were released on bail. Therefore, by
application of the principle of parity, the present applicant should also
be released on bail. Counsel submits that he is not an FIR named
accused and no prima facie case of the charge of murder has been
made out against him and therefore there is no justifiable reason of his
arrest and detention. Relying on the decision of the Apex Court in the

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case of Sanjay Chandra Vs. Central Bureau of Investigation
reported in (2012) 1 SCC (Cri) 26: (2012) 1 SCC 40 counsel submits
that the Hon’ble Apex Court has held that bail is the rule and jail is an
exception. Counsel further submits that as per the said judgment of the
Apex Court, the gravity of the charge alone cannot be a decisive ground
to deny bail when there is no good reason to detain the accused in
custody. Counsel has relied on paragraphs 40, 41, 42, 43 and 44 of the
said judgment wherein the Apex Court has held as under:
“40. The grant or refusal to grant bail lies within the
discretion of the Court. The grant or denial is regulated,
to a large extent, by the facts and circumstances of each
particular case. But at the same time, right to bail is not
to be denied merely because of the sentiments of the
community against the accused. The primary purposes of
bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of
keeping him, pending the trial, and at the same time, to
keep the accused constructively in the custody of the
Court, whether before or after conviction, to assure that
he will submit to the jurisdiction of the Court and be in
attendance thereon whenever his presence is required.
41.This Court in Gurcharan Singh and Ors. Vs. State AIR
1978 SC 179 observed that two paramount
considerations, while considering petition for grant of bail
in non-bailable offence, apart from the seriousness of the
offence, are the likelihood of the accused fleeing from
justice and his tampering with the prosecution witnesses.
Both of them relate to ensure of the fair trial of the case.
Though, this aspect is dealt by the High Court in its
impugned order, in our view, the same is not convincing.
42.When the undertrial prisoners are detained in jail
custody to an indefinite period, Article 21 of the
Constitution is violated. Every person, detained or
arrested, is entitled to speedy trial, the question is :
whether the same is possible in the present case.

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43.There are seventeen accused persons. Statement of
the witnesses runs to several hundred pages and the
documents on which reliance is placed by
themprosecution, is voluminous. The trial may take
considerable time and it looks to us that the appellants,
who are in jail, have to remain in jail longer than the
period of detention, had they been convicted. It is not in
the interest of justice that accused should be in jail for an
indefinite period. No doubt, the offence alleged against
the appellants is a serious one in terms of alleged huge
loss to the State exchequer, that, by itself, should not
deter us from enlarging the appellants on bail when there
is no serious contention of the respondent that the
accused, if released on bail, would interfere with the trial
or tamper with evidence. We do not see any good reason
to detain the accused in custody, that too, after the
completion of the investigation and filing of the charge-
sheet.
44.This Court, in the case of State of Kerala Vs. Raneef
(2011) 1 SCC 784, has stated :-
“15. In deciding bail applications an important factor
which should certainly be taken into consideration by the
court is the delay in concluding the trial. Often this takes
several years, and if the accused is denied bail but is
ultimately acquitted, who will restore so many years of
his life spent in custody? Is Article 21 of the Constitution,
which is the most basic of all the fundamental rights in
our Constitution, not violated in such a case? Of course
this is not the only factor, but it is certainly one of the
important factors in deciding whether to grant bail. In the
present case the respondent has already spent 66 days in
custody (as stated in Para 2 of his counter-affidavit), and
we see no reason why he should be denied bail. A doctor
incarcerated for a long period may end up like Dr.
Manette in Charles Dicken's novel A Tale of Two Cities,
who forgot his profession and even his name in the
Bastille.”
[7] Mr. R. Datta, learned P.P. on the other hand contends that a
boy of 18 years of age was brutally murdered by a mob on suspicion
that he was in the team of cattle lifters and the statements of the eye

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witnesses has revealed the name of the present accused petitioner as
one of the members of the mob who were found chasing the deceased
and killing him. After killing said Saiful Islam, his assailants tried to
cause disappearance of evidence by burying his body under earth. Mr.
Datta, learned P.P submits that this is one of the gravest forms of
offence known to the society in which the extra ordinary relief of pre-
arrest bail under section 438 Cr.P.C. cannot be granted to the accused.
Learned P.P. submits that other members of the mob who killed Saiful
Islam are yet to be booked. In these circumstances, release of the
applicant on pre arrest bail will frustrate the investigation of the case.
Learned P.P. submits that principle of parity will not apply in this case
because, thought the charge is same, the circumstances under which
the other accused were granted bail were totally different. Moreover,
Dinu Debbarma and Ripan Debbarma were granted bail after they were
arrested and interrogated by police. Learned P.P. submits that similar
applications under section 438 Cr.P.C were also filed by the present
applicant before the Sessions Judge and learned Sessions Judge after
perusal of the case diary and having heard the counsel of the parties
rejected the bail application of the applicant on merit. Learned P.P
submits that in view of the gravity of the offence and the materials
available on record, the bail application of Gagan Debbarma may be
rejected.
[8] Perused the record and considered the submissions made by
learned counsel appearing for the parties. Keeping in mind the law laid

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down by the Apex Court in the case of Sanjay Chandra (Supra) which
has been relied on by the learned counsel of the petitioner, this court is
of the view that apart from the gravity of offence, there are other
factors which are unfavourable to the accused applicant in this case. A
young boy of 18 years was brutally lynched by a mob only on the
suspicion that he was a cattle lifter even though no cattle was found in
his possession. The eye witness version of some of the witnesses whose
statements have been recorded by police in the course of investigation
demonstrate that the present applicant was one of the members of the
mob who was found chasing and lynching the deceased. Anticipatory
bail under section 438 Cr.P.C. is an extra ordinary relief. The Apex
Court in the case of Siddharam Satlingappa Mhetre vs State of
Maharashtra & Ors. reported in (2011) 1 SCC 694 has laid down the
parameters for granting or refusing the anticipatory bail which is as
under:
“112………. The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:
(i) The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended
before arrest is made;
(ii) The antecedents of the applicant including the fact as
to whether the accused has previously undergone
imprisonment on conviction by a Court in respect of any
cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused’s likelihood to repeat
similar or the other offences.

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(v) Where the accusations have been made only with the
object of injuring or humiliating the applicant by
arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large number of
people.
(vii) The courts must evaluate the entire available
material against the accused very carefully. The court
must also clearly comprehend the exact role of the
accused in the case. The cases in which accused is
implicated with the help of sections 34 and 149 of the
Indian Penal Code, the court should consider with even
greater care and caution because over implication in the
cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between two
factors namely, no prejudice should be caused to the
free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;
(ix) The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
(x) Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have
to be considered in the matter of grant of bail and in the
event of there being some doubt as to the genuineness of
the prosecution, in the normal course of events, the
accused is entitled to an order of bail.”
[9] Further in Jai Prakash Singh vs. State of Bihar reported in
(2012) 4 SCC 379 the Apex Court further elucidated the principles for
consideration of anticipatory bail which are as under:
“19. Parameters for grant of anticipatory bail in a serious
offence are required to be satisfied and further while
granting such relief, the court must record the reasons
therefor. Anticipatory bail can be granted only in
exceptional circumstances where the court is prima facie
of the view that the applicant has falsely been enroped in

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the crime and would not misuse his liberty. (See D.K.
Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434,
State of Maharashtra v. Mohd. Sajid Husain Mohd. S.
Husain, (2008) 1 SCC 213, and Union of India v. Padam
Narain Aggarwal, (2008) 13 SCC 305).”
[10] Having considered the given facts and circumstances of the
case and keeping in mind the parameters laid down by the Apex Court
in the judgments cited above, this court is of the view that the applicant
cannot be granted pre arrest bail in this case.
[11] In the result, the bail application stands rejected and the
matter is disposed of. Return the case diary.
JUDGE
Rudradeep